§ Order for Second Reading read.
§ Motion made, and Question proposed, "That the Bill be now read a Second Time."
The SOLICITOR GENERALsaid, he thought it necessary that they should have a very clear understanding of the grounds on which this Bill should be admitted, on the part of the Government, to be read a second time. The purpose of the Bill was one, the importance of which could scarcely be exaggerated. It would be in the re- 648 collection of the House that he had stated, on a former occasion, that in case the Report of the Commission which was sitting on this and cognate subjects was not presented within a certain period, he would consider it his duty to lay on the table of the House a measure which would embrace the whole subject—that subject upon which there had been incessant but fruitless attempts to legislate ever since 1830. The present Bill, it would be observed, was directed only to a very fragmentary part of that extensive subject. It was directed exclusively to this particular mischief; the necessity which at present existed, in consequence of very defective machinery, of having, on many occasions, probates granted, and administrations taken out, in different Ecclesiastical Courts. By way of introducing the matter, though he believed it was familiar to almost every hon. Member, the House would probably indulge him while in as few words as possible he sketched the present state of our ecclesiastical jurisdiction in this respect. There was, at present, the Prerogative Court of the Archbishop of Canterbury and the Prerogative Court of the Archbishop of York; and the probate of a will or an administration granted in one province, was now of no avail in the other province. There were, besides, the Diocesan Consistorial Courts of the Bishops of Dioceses; and, again, independent of these jurisdictions there were, at least, 300 smaller tribunals scatterred over the country, which were called Peculiars' Courts, each of which, over a particular area had a right of jurisdiction of granting probates of wills and letters of administration. The consequence of such a complication not unfrequently was that a will had to be proved, first in Canterbury, and secondly in York; that then a further probate was required in Scotland, and even again in Ireland; and by the evidence which came before the Commission he had referred to, it would appear that there were numerous cases in which it had been found requisite that the same will should be proved, in different courts, not less than six times. To this description of mischief this Bill to a certain extent addressed itself; but, unfortunately, it was so badly worded and so imperfectly expressed, that in the attempt to remedy the evil, it would in point of fact, render the evil ten times more insufferable than it was at present. He alluded, particularly, to the first section, which provided, with a very inade- 649 quate view of the subject, that any probate of a will or letters of administration—
that shall be granted, in England or Ireland, by any court or authority having jurisdiction to grant such, in respect to any part of the personal estates, shall be, in all such cases, equally valid and effectual, in respect to the whole of the personal estate;and if the Bill were permitted to pass in that form of words, and if the same will must still be proved in a dozen different tribunals, the result would be that there would then be a dozen different probates all of conflicting authority. It was clear, therefore, that the good intent of the Bill had been completely marred by an imperfect and insufficient form of expression. He admitted that this difficulty, and the other difficulties arising out of bad wording, could be remedied in Committee, and, no doubt, if the Bill was to proceed at all, it was to the Committee only they would have to look. But he would humbly suggest to the House that the best course would be this—that the Bill should be allowed to be read a second time, but only pro formâ, and on the clear understanding that it should remain on the table of the House until an opportunity should be afforded the Government of bringing in that larger measure on the whole subject to which he had before adverted; and then, if the opportunity thus afforded should not be taken advantage of within a reasonable time, he would of course not be entitled to object to this particular Bill now before the House going into Committee; and in Committee it would be his earnest desire so to amend the Bill, and engraft on it such provisions, as would render it at all events a very considerable instalment of the much-needed and long-promised reform with respect to the testamentary jurisdiction of the country. With this view he would proceed to state, in a few words, the additional provisions which he thought it would be necessary to incorporate in this Bill, and in consideration of the desirableness of which he was alone justified in making his present proposal to the House. The first thing which they should attempt in this matter was the total abolition of the Peculiars Courts' jurisdiction. They stood at present in a very singular predicament. Legislation had long ago been aimed at them; and they were doomed to be extinguished by the Act of the 6 & 7 Will. IV., c. 77. In truth this jurisdiction, which had ever been an opprobrium 650 to the civilisation of the country, had been continued, from time to time, in a very extraordinary way, by the means of annual Acts passed for the strange purpose of suspending the operation of that very Act of 6 & 7 Will. IV., c. 77. In fact, these Courts had been kept alive by what might be regarded as an annual Act of Indemnity. But this could not be expected to go on much longer; and, if the larger measure should not be brought in, and if this Bill, also, with amendments introduced into it, should not be passed into a law, he warned those persons who were concerned in bringing in those annual Acts of suspension to prolong the existence of these mischievous Courts, that he should be prepared to appeal to the sense of the House whether the object of the Act he had quoted ought any longer to be thus avoided? The abolition of these Peculiars Courts would place the testamentary jurisdiction of the country in a new position. The Diocesan Courts would remain with the two Courts of the provinces of Canterbury and York; and the proposal which he would hereafter submit to the House would have for its object, among other things, to abolish altogether the metropolitan Court of the Archbishop of York; and to establish one Court of Probate, to take effect throughout the whole of England and Wales, upon all subjects of contentious jurisdiction. The phrase "contentious jurisdiction" might require a little explanation for the benefit of those Gentlemen who were not conversant with legal phraseology. There were three forms of proving a will. One, which was called in technical language proof of a will in common form, consisted, in reality, of nothing more than than bringing in an affidavit of the due execution and attestation of a will in the manner required by the law; and then, if on the face of the document there appeared no objection to the admissibility of the Act, the will was proved without further acts. This was proof of a will in common form; and with the exception of about one-tenth or one-twentieth of the wills proved in the country, all wills might be said to be proved in that form. Obviously it would be very desirable that this should be permitted to be done in the manner most econonomical for the purposes of those persons who are resident in the country, and who ought not, unless from paramount necessity, to be compelled, for such an object, to resort to a metro- 651 politan tribunal. The proposal, therefore, would be, that there should remain to the Diocesan Courts, who would remain unaffected by the abolition of the Peculiars Courts, the power of entertaining the questions of the probates of wills in common form; not giving them contentious jurisdiction, which implied litigation and complicated procedure; not giving them the power of having wills proved in solemn form by the elaborate examination of witnesses; but leaving them to retain in cases of estates not exceeding a limited amount—of about 1,000l. or 1,200l.—the power of receiving and passing wills in common form. He would, however, only be in favour of giving the Diocesan Courts this power with certain qualifications and conditions. The first condition which he would attach would be of this nature. The Diocesan Courts were presided over by the Chancellors of the Diocese, and these Chancellors were judicial officers appointed by the Bishop of the diocese. In many of the Diocesan Courts these Chancellors were gentlemen who had been duly trained in the profession of the law, and undoubtedly fulfilled the functions of their offices with great ability, and to the eminent satisfaction of the persons whose interests were affected by these Courts. But this was not the case universally; and his proposal would, consequently, be to allow testamentary jurisdiction to the extent he had mentioned to be retained in the Diocesan Courts, subject to the condition that in every diocese the Chancellor shall be a lawyer of a certain standing at the bar, and of certain qualifications in the profession of barrister. There was another condition as necessary to be attached. The House would bear in mind the great advantages that were to be derived connected with the probates of wills, as indicating the value of estates, from a system of general registration; and he would propose that every will proved in the manner he had stated in the Diocesan Courts should be transmitted to the general registry of wills to be established in London, in which all the wills at present scattered among the various Diocesan and Peculiars Courts, and in future to pass through the Diocesan Courts, shall be congregated, copies only being kept for reference in the registries of the Diocesan Courts. With these qualifications, he would be for leaving the power of proving wills in common form in the Diocesan 652 Courts; for the House could not but be aware that it would be a hardship in the average cases of persons resident in the provinces to make it necessary for them, for this purpose, to have to resort to the metropolis. But even in the proving of wills in common form questions and difficulties arose; and it would be proposed that in all such instances the matter should be referred for decision to the Metropolitan Court. Not only, then, would all contentious jurisdiction connected with the determination of suits arising out of disputed wills be centred in the metropolis; but, also, all cases that might arise in course of determination of wills in common form would, in the same manner, be referred to the central tribunal. Connected, further, with these Diocesan Courts, he would propose to extend to County Courts powers of administering estates; and he would do so for what he regarded as satisfactory reasons. The House would, he thought, coincide with him in the necessity of combining the powers and jurisdiction in these matters, as much as possible, in the same tribunal; for the great evil at present existing, in addition to the other evils of ecclesiastical jurisdiction, lay in the circumstance of the jurisdiction of proving a will and granting administration being exercised by a tribunal which was perfectly distinct from the tribunal to which appertained the power of administering the estate and effects of the deceased party. In continuing, therefore, these powers to the Diocesan Courts, which it would be desirable to continue, for a variety of reasons, in addition to those he had already stated, it would be proposed that there should be given to the County Courts, collaterally with the Diocesan Courts, the right of administering, to a certain amount, the effects of deceased persons. With regard to the Metropolitan Court, what he proposed was that that Court should be at once transferred, as it at present existed, with all its staff of experienced practitioners, namely, proctors, registrars, and clerks of the see—to the Court of Chancery. He said to the Court of Chancery for the same reason he had just given; for the Court of Chancery was the only tribunal to which the administration of the property of deceased persons belonged; and, therefore, the only Court which would have the power of exercising the authority to take cognisance of wills affecting personal estates, and also of wills affecting real estates. The House 653 was aware that there was at present a great anomaly in the system in this respect. You proved a will in Doctors' Commons, and the proof of that will, when decided on by that tribunal, is binding with respect to personal estate; but then the decision of that tribunal as to the whole of the personal estate is not of the smallest effect or operation with respect to the validity of the same instrument so far as it affects real estate. The result, as was only to be expected, was great confusion, a variety of conflicting decisions, and of contradictory determinations—he was not speaking theoretically—but of what was found to occur in practice; the same instrument being valid as a will as regards personal, and inoperative as regards real estate. The only mode in which this evil could be remedied would be to vest in the one tribunal power finally to determine the validity of a will as an instrument affecting both real and personal estate; and to give that power to the tribunal which has jurisdiction to carry into effect the direction of the instrument with regard to either portion of the property. The result of that arrangement of the jurisdiction would be this: that the Diocesan Courts must be regarded as Courts placed in connexion and relation with the metropolitan tribunal, namely, the Court of Chancery, which would become the great Court of Probate; and thus another anomaly in our system would be done away with. At present, the Ecclesiastical Courts are not regarded as Queen's Courts, but as deriving their power from some sort of spiritual authority; but by a transfer of this ecclesiastical jurisdiction to the Queen's Court, the Court of Chancery, that anomaly would be done away with; and the whole of the jurisdiction, as to proofs of wills, and administration of estates, would henceforth be regulated and controlled by one tribunal; the whole business would flow in the same channel, and be guided by the same principles; there would be one Court of Appeal, with the same course of procedure; there would be no necessity for resorting, for the same end, to different tribunals; the ends of justice would be simply and adequately served; and all the exigencies of the case would be answered and discharged by the same Court. This would introduce, not only conformity but convenience into the system; and would, in fact, accomplish all that had been so often and so vainly attempted before. In his opinion, the failure of previous efforts 654 in this direction was attributable to two causes. One cause was, that until the late reform in the Court of Chancery there had been a great disinclination, whatever the desire for a change, to transfer the jurisdiction of the Ecclesiastical Courts into that Court, which, indeed, had laboured under a degree of discredit hardly inferior to the reproach attaching to the Ecclesiastical Courts themselves. But the imperfections of the Court of Chancery had now been nearly, if not entirely, done away with; and the time had obviously come to make the transfer with the certainty that the jurisdiction in respect to wills and to the property of deceased persons, dying intestate, would be regulated in a manner satisfactory to the community at large. There was, however, one reason which presented an obstacle, to accomplish such a transfer, and that consisted in a difficulty with regard to the question of compensating the persons whose interests would be affected by the change. To avoid this difficulty altogether, he would ask the House to go along with him in the recommendation that all the present officers of the existing Court, the proctors and registrars, the clerks of the see, and others, should at once become officers of the Court of Chancery, for the purpose of administering this new great jurisdiction, and that there should be given to them, for a certain definite period, the conduct of the business of the proof of wills in common form. He made this proposal because he was very far from being insensible to the value and importance of securing the services and retaining the experience and ability of that meritorious body of men, the Equity registrars, and the proctors of the Prerogative Courts. If this arrangement were accomplished—if they were so transferred to the Chancery Court, and the rights secured to them for a certain period, the duration of which might be hereafter considered, with respect to the business of proving wills in common form, then he thought that they would be precluded from all complaint, and, further-more, that their professional emoluments would be found not to suffer materially by the transfer. In this way the Legislature would avoid all that remonstrance and those objections which on former occasions had stood in the way of the desired reform. In connexion with the same subject, it would be necessary to remind 655 the House that on the former occasions the Legislature had provided that the officers of the Ecclesiastical Courts should take their offices subject to future changes made by Parliament, and should not, upon such change, be entitled to compensation; and he adverted to the point in order to suggest the care which had been manifested at former periods to smooth the way for such a proposal as he now made. He found that the Act 6 & 7 Will. IV., c. 77, already alluded to, provided that—In case the office of judge, registrar, or other officer of any or either of the Ecclesiastical Courts in England or Wales (except the Prerogative Court of Canterbury) shall become vacant, the person thereunto appointed shall not, by such appointment, acquire any vested interest in such office, nor any claim or title to compensation in respect thereof, in case the same shall be here-after abolished by Parliament.There would be no difficulty, therefore, he apprehended, in dealing as he had proposed with regard to the Peculiar or the Diocesan Courts, the rights of whose officers might otherwise stand in the way of reform; for he apprehended there could scarcely be an instance that would not fall under the operation of the Act he had referred to. All these changes having been effected, the jurisdiction, no longer ecclesiastical, on the subject of wills, would stand in this way. Whenever a person dies, having a fixed place of residence within the limits of the jurisdiction of any or one of the existing Diocesan Courts, provided his estate does not exceed a certain amount, it will be competent for his will to be proved in the Diocesan Court of his diocese; but if any question arises touching the proof, or there is any litigation or dispute affecting the will, the decision of the question, with the litigation, must be removed to the Court of Probate in London. The like rule will apply with regard to the effects of persons dying intestate; and, in the event of a person dying having no fixed residence in a diocese, or dying abroad, then the will and the administration of the estate shall be proved and granted by the Metropolitan Court of Probate alone. Wills will have to be transmitted, where-ever proved, to the Metropolitan registry. Administration will also be registered in London; and the utmost facility will thus be given for the proof and manifestation of title to real and personal estate; and the evils which at present prevailed from wills being scattered, and hid, almost in- 656 accessibly, in the obscure depositories of the provincial courts, will be completely obviated. The consequence will be that the metropolitan tribunal, the Court of Chancery, will possess at once the power not only of determining the will, of directing it to be carried into effect, but finally of distributing the whole of the real as well as the whole of the personal estate. All questions will therefore be at once transferred to one final place of resort, namely, to the House of Lords, as the Court of Appeal, instead of being decided, as such questions now are, some in the Committee of the Privy Council, and some in the House of Lords, which being entirely independent jurisdictions, not unfrequently arrive at opposite conclusions. He had now sketched the principal provisions of the measure, which with other attending provisions it would be his wish to submit to the House of Commons; and he would urge those points on the House with the less reluctance, that they involved no more than had been approved of by successive Commissions, had been embodied in a variety of Bills, and had been confessed and acknowledged to be desirable alterations, from 1830 downwards. He might refer to the various attempts made to carry such changes into effect. In 1835 a Bill was brought in to the House of Commons in conformity with the recommendation of the Commissioners, who reported in 1832–3 for establishing one Probate Court in each province. In 1835 another Bill was brought in for the establishment of one Court only for both provinces. In 1836 a Bill was brought in for the establishment of one Court for England and Wales. In the same year there was a Bill proposing what he had now proposed, namely, one central Court and a variety of local Courts. In 1843 a Bill was brought in for establishing a single Court of Probate. There was another Bill of the same kind in 1844, and another to the same effect in 1845. There had therefore been in point of fact a series of attempts to carry the provisions he had sketched into effect; and though he was aware that there were many cases in which they would have to wait for a more full development, yet he thought they had both material and information to proceed at once upon, as well as being in possession of opinions of great distinction, from men of every variety of political creed, all concurring in the propriety and necessity of the establishment of one Me- 657 tropolitan Court for the proof and administration of wills, such Court to be aided only and in a subordinate way by the provincial Courts. The other objects that would be accomplished by such a measure were important in other points of view; but in order that he might anticipate some possible objections, he might at once state that there would be in that measure a plan for the regulation of caveats in London alone; so that they might be entered in London, and then immediately communicated to the Diocesan Court. The result of that would be that there would be no necessity for searching a variety of Diocesan Courts for the purpose of ascertaining whether there was any objection to the proof of a will; the objection would in future be in the caveat in the Metropolitan Office. And there was another important point. The House was aware, no doubt, of the difference that arose in the administration of estates by reason of the imperfection of the jurisdiction of Ecclesiastical Courts to provide for the administration of property pending disputes. This would be entirely removed by centralising in the Court of Chancery the right of determining the probate of a will, and the right to grant administration; that Court before or pending probate would have full power to administer the estate; and consequently no difficulty, touching the collection of debts, the disposal of property, or other embarrassments that now constantly sprung up, would possibly occur. He had now completed his list of the benefits that he believed would flow from such a measure as he would, on a subsequent occasion, ask the leave of the House to bring in. He had only to say, in conclusion, that if it was perfectly understood that the present Bill was to lie on the table until he had that measure ready, he would not resist the second reading; but if that were not understood, he could not accede to the second reading.
The SOLICITOR GENERALsaid, he was obliged to the hon. Gentleman for reminding him of that point. Undoubtedly it would be desirable to make probates granted in one country of universal effect in the other country; and by the measure he comtemplated, though there would be modifications to meet the different circumstances in Ireland, the probate of a will would be of universal effect and ac- 658 ceptance throughout the United Kingdom.
§ MR. HENLEYsaid, be was sure that the House and the country would regret that some notice had not been given of the intention of the hon. and learned Gentleman the Solicitor General to develop a measure of such an extensive and important character, calculated to produce such beneficial results, so that all those who took an interest in the subject might have had the advantage of hearing the exposition which the hon. and learned Gentleman had just given—an exposition which, under existing circumstances, could not have been anticipated at a time when they were considering a Bill so very limited in its operation as the one immediately before the House. The hon. and learned Gentleman commenced his speech by referring to a Commission now sitting upon this as well as other subjects, and went on to say that it was not only his intention to deal with this subject whether the Commission should report or not, but he also indicated the outlines of an extensive scheme—not dealing in general matters, but in all its possible details. The hon. and. learned Gentleman had thus shown that in his own mind he had completed his measure, and he might, therefore, now, if he thought fit, lay such measure upon the table of the House. He (Mr. Henley) confessed he thought that the country had some reason to complain that a measure of this sort should have been announced in what seemed to him to be an irregular manner. As the hon. and learned Gentleman intimated, he held to himself the power of either bringing in this Bill at once, or of letting the present measure lie dormant for any period it might seem fitting to him that it should so lie; and it might be at the very close of the Session that the hon. and learned Gentleman would, perhaps, avail himself of the machinery of the present Bill to introduce all those changes which, by the usual forms of the House, should properly be introduced in an independent way, after due notice had been given, thus affording all parties an opportunity of giving the subject the fullest consideration. It seemed that in the measure which the hon. and learned Gentleman meant to bring forward, it was intended to render the acts of the Court in London, in respect to probates, of equal authority in the other parts of the United Kingdom. He wished to understand the hon. and learned Gentle- 659 man correctly as to the extent of the proposal he had made?
The SOLICITOR GENERALsaid, he intended to propose that there should be a Court of Probate in Dublin corresponding to the Court in London, and the probate granted in either would run throughout the United Kingdom. That, he considered, was a very important addition to any previous proposition.
§ MR. HENLEYsaid, that he had so understood the hon. and learned Gentleman, and he repeated his observation, that upon a subject of such extensive importance he regretted that such a statement should have been made without notice, or in so thin a House. He also understood the hon. and learned Gentleman to say he would propose that all the country courts, except the Diocesan Courts, should be abolished.
The SOLICITOR GENERALsaid, what he intended to say was, that the Diocesan Courts were to have jurisdiction to grant probates of wills to a certain amount in common form, but not in a case of what was called contentious jurisdiction.
§ MR. HENLEYhad rightly understood the hon. and learned Gentleman when he used the word "peculiar," that he meant to include in that word Courts of archidiaconal jurisdiction. There was one part of the hon. and learned Gentleman's statement which he confessed he could not see the reasoning of. The hon. and learned Gentleman said that this measure, so far as the local machinery was concerned, was to be confined to probates in what was commonly called common form. The reason given for proposing to continue this jurisdiction to such Courts was because they were presided over by gentlemen of legal ability, who were quite competent to deal with the subject; and he then alluded to the Chancellors who had, he said, with great advantage to the public, presided over those Courts. The hon. and learned Gentleman, however, went on to say that he would require those Chancellors to have a good legal education, to a certain extent; but he did not say what kind of legal education this was to be. Now it so happened, as far as his (Mr. Henley's) experience went, that in proving a will in common form, the Chancellors in those country courts had nothing whatever to do with such business. The work was really done by the Registrar, or deputy Registrar. 660 He therefore thought that it would be much more to the purpose to secure a competent legal education to the Registrars than to the Chancellors. The hon. and learned Gentleman went into the question of compensation somewhat largely; and, as he (Mr. Henley) understood him, having made up his mind to transfer the whole of the jurisdiction of those Courts to the Court of Chancery, he meant to transfer with it the whole of the clerks and officers of such Courts in London. He wished to know whether he had understood the hon. and learned Gentleman right, that it was his intention to have the common form of business disposed of by the Court of Chancery?
§ MR. HENLEYWell, but the hon. and learned Gentleman had not stated into what hands he meant to throw the contentious jurisdiction, nor had he informed them what was to be the position of the advocates of the Ecclesiastical Courts. He wished the hon. and learned Gentleman would state whether he intended that this business for the future was to be opened to the Bar at large, or whether it was to be confined exclusively to the proctors and advocates of Doctors' Commons?
§ MR. HENLEYThen it appeared that so far as the business of contentious jurisdiction was concerned, which formed some considerable portion of the business of the proctors and advocates of Doctors' Commons, it would be carried in future to a Court in which such persons had no experience; and, therefore, the change would be tantamount to shutting them out from any share of the practice. The business would necessarily pass out of their hands to the hands of the solicitors and barristers of the Court of Chancery. He saw the hon. and learned Member for Tavistock (Mr. R. Phillimore) in his place, who must necessarily feel considerable interest in the measure of the Government, and he was somewhat curious to know how this declaration by the hon. and learned Solicitor General squared with that hon. and learned Gentleman's feelings. There was one other point to which he begged to draw the attention of the hon. and learned Gentleman—he meant that which had reference to the subject of compensation. He Un- 661 derstood the hon. and learned Gentleman to say he intended to carry the whole of his scheme out, because, in consequence of the 6 & 7 Will. IV. c. 77, the parties were shut out from the right of receiving compensation.
§ MR. HENLEYWell, then, the hon. and learned Gentleman did not indicate in what way or from what fund the parties who were not privileged under the Act referred to to receive compensation were to receive this advantage. Under all the circumstances of the case he thought it would have been more fair to the question itself, as well as to the House and the country, if the hon. and learned Gentleman, instead of proposing to read the present Bill a second time, would have moved its postponement until they were informed whether it was or it was not the immediate intention of the Government to introduce a larger measure on the subject. He thought it would be hardly just and fair for the hon. and learned Gentleman to seek to engraft a measure of the extent indicated, upon a Bill of this kind, after it had passed through a second reading. He threw it out as a suggestion, whether it would not be more advisable to postpone the second reading of this Bill, than passing it for the purpose of letting it lie dormant for an indefinite period. The subject was of vast importance, and should not be discussed in this irregular manner. They should wait until they had the measure in all its details before them, when it would be entitled to much more serious consideration than even the clear and lucid statement of the hon. and learned Gentleman himself. In this subject the country had long taken a deep interest, and he could only hope that the hon. and learned Gentleman would be more successful in his efforts to deal with it than it appeared any of his predecessors had ever been; but he (Mr. Henley) thought that the long list of failures, extending over a period of eighteen years, to which the hon. and learned Gentleman referred, was by no means calculated to give him encouragement in his present course. In conclusion, he must express a hope that legislation on this subject would not be postponed until the end of the Session.
§ MR. R. PHILLIMOREbegged to tender to the right hon. Gentleman the Member for Oxfordshire (Mr. Henley) his thanks for the kind and wholly unexpected sym- 662 pathy he had bestowed on that body with which he (Mr. Phillimore) had the honour of being connected. He trusted the profession would escape the dreadful fate which the right hon. Gentleman had portrayed; and he was sure, at all events, that their claims would be duly considered in any measure that might be brought in by the Government. Of this, however, he was certain, that no body of persons had a right, upon the grounds of private advantage alone, to oppose their claims, whatever they might be, as an obstacle to the accomplishment of any great public improvement. He did not know whether the hon. and learned Gentleman the Solicitor General's statement was exactly in accordance with the forms of the House; but he was certain that every Member must feel grateful to him for one of the most clear and lucid statements upon a subject of great interest which it had ever been his good fortune to hear. He himself could vouch for the extreme accuracy of the hon. and learned Gentleman's statement. He was not aware that in any part of that luminous and historical narrative, there was a single error or misconception. Now he was free to admit, that the principle of the measure immediately before the House was excellent, and it was one which it was most desirable should be recognised; but it sometimes happened that the means a person used to bring about a certain result, actually defeated the end which he had in view. So it was in the present instance. If this Bill passed in its present shape, he submitted that the confusion which at present existed upon the subject, would be greatly, however unintentionally, increased. The hon. Member (Mr. Hadfield) who had charge of the Bill appeared not to be at all aware of the consequences of the provisions contained in the second clause. He (Mr. Phillimore) would endeavour to illustrate the mischief which such a clause, if agreed to, would occasion. A person dies in Dublin, who has some property in Dublin, some in York, and some in Canterbury. The value of the property in Dublin and York is 20l. respectively, but in Canterbury the value of the property is 500,000l., which is lodged in the Bank in London. Well, probate is taken out from the Dublin Court, and the party possessed of it comes over to the Bank in London, and, showing his authority, says, "Here is a probate of a will in which I am executor; give me the money standing in the deceased's name." 663 The Bank, under such circumstances, must pay over this money, although the probate was taken out of a Court in a district where the amount of the property of the deceased was only 20l. Well, as soon as the money was thus paid, another person who had a claim upon the property of the deceased takes out probate in the court of York, and on applying to the Bank of London, armed with his authority, he is informed that every farthing of the money had already been paid to the first applicant. The confusion might be still further increased by a person in Armagh putting in his claim, and declaring that the deceased died intestate, and, that as administrator duly appointed by the Court of Armagh, he laid claim to the whole of the personal property; and still further, by a person in the province of Canterbury or the province of London claiming as executor under a later will. There was no doubt a great advantage arising from the power which existed of entering a caveat, so as to prevent the granting of such probate; but, by the present Bill, how was a party to know that he had reason to apprehend some person was seeking improperly to possess himself of the property of the deceased, or to know where he was to enter the caveat? The House would at once see the embarrassments to which such a state of things must lead. At present a man could, by entering a caveat, prevent a probate being taken out in such cases; but under this Bill no such protection could be obtained. He had, therefore, no hesitation in saying that if the present Bill was passed, the mischiefs which now existed, instead of being remedied, would be very greatly increased. If the Bill was to be read a second time, he would recommend that it should be so under the stringent limitations proposed by the hon. and learned Solicitor General. He concurred in the opinion expressed by the right hon. Gentleman the Member for Oxford-shire, that the Registrars of the Diocesan Courts should be required to have as good a legal education as the Chancellors. He did not, however, agree with him in thinking that the business of common form concerned the Registrars exclusively, for some of the most difficult questions arising did not arise out of contentious jurisdiction of the Court, but out of cases which belong to the voluntary jurisdiction, and in which the parties were willing to abide by the decision of the Court. It should be also understood that it was the habit 664 of every Registrar who properly understood and executed his duty to communicate upon all points of difficulty with the Chancellor, who was generally not resident. He hoped that the hon. and learned Gentleman the Solicitor General, in his measure, would take care to provide that the Registrar as well as the Chancellor should be officers duly trained by legal education for the duties which they had to discharge—that the duties of neither should be any longer performed by deputy—and moat especially he hoped that all sinecures would be abolished and rendered wholly impossible for the future.
§ The LORD ADVOCATEsaid, he wished to make a single observation in relation to the matter, in so far as it affected Scotland. The object of the sixth clause of the Bill before the House was not only to make the probate of a will in England good and effectual in Scotland, but also to affirm the principle that wills proved in Scotland should be good in England. That unquestionably was a very desirable thing, and one he was anxious to promote; but, as the Bill was now worded, there was not a single expression in it applicable to the mode of procedure in Scotland. As the hon. Gentleman who promoted the Bill had, however, expressed his intention of communicating with him on that point, and as he believed provisions might be introduced in Committee to make effectual the object intended, he would support the second reading of the Bill.
§ MR. COWANsaid, he had received a petition from the managers of fourteen life insurance companies in Scotland in favour of this Bill. They referred to the hardship and expense to which many persons connected with them, whether as share-holders or having their lives insured, were subjected in consequence of the present law, and prayed for a change. When it was considered that the liabilities of these companies amounted to 33,000,000l., the opinion they expressed was surely entitled to great weight in that House. He had heard the statement of the right hon. and learned Lord Advocate with great pleasure, and he trusted the Bill would be allowed to go to a Committee, in order that necessary improvements might be made.
MR. HUMEsaid, he thought the hon. Gentleman who had just spoken could not have heard the statement of the hon. and learned Solicitor General, or he would not have suggested that the Bill should be pressed forward. A more able and com- 665 prehensive statement he had never heard; and he must also say he was delighted with the observations that fell from the hon. and learned Gentleman below him (Mr. R. Phillimore), and which showed so excellent a spirit of self-sacrifice for the public good. There was one point about which he (Mr. Hume) wished, for the satisfaction of the people, to be clearly explained—he meant the sinecures incident to some of the Ecclesiastical Courts; and he desired to ask the Solicitor General whether the Bill he intended to introduce would make provision for the complete abolition of sinecures—whether, having a proper regard for vested rights, it would include the prospective abolition of all those sinecures which had long been the disgrace of those Courts?
The SOLICITOR GENERALsaid, in answer to the question of the hon. Member for Montrose, he had not the least difficulty in stating that it would be one of the provisions of the measure which he trusted soon to bring forward to abolish all those sinecures, which had been the opprobrium of the profession to which he belonged, and which he might also say had been the opprobrium of that House; because, when they spoke of sinecures that were at present enjoyed, and especially of one by a gentleman whose name had been very often before the country, Mr. Moore, they must remember that the House solemnly sanctioned the grant of the reversion of that office; and it, unfortunately, would be incumbent on him in the measure which he had to bring in to provide for the abolition, not only of a sinecure in possession, but of a sinecure in reversion, which must be done at the expense of the country.
§ MR. WALPOLEsaid, the only question now to be considered was, whether they should at once read the Bill now before the House a second time, or postpone the second reading until they had the larger measure promised by the hon. and learned Gentleman the Solicitor General before them. He confessed he did not think that they would gain anything by reading the Bill a second time. On the contrary, if he understood the proposition of the hon. and learned Gentleman correctly, they could not, in fact, embody in the present Bill the features of the larger measure that was to be proposed, without a distinct instruction being given to the Committee. For that reason, he suggested to the hon. Gentleman (Mr. Hadfield) who had the conduct of this Bill, to consent to its being read a 666 second time that day month, instead of being read a second time on that occasion. By such an arrangement, they would have the opportunity of seeing what the Government really intended to do on the subject, and also of amending the present Bill, if it were thought advisable to do so. Another observation he wished to address to the hon. and learned Solicitor General, who, he assumed, represented the Government on this subject. The hon. and learned Gentleman had announced a very large measure for improving the jurisdiction of the Ecclesiastical Courts, or rather of altering the ecclesiastical law in reference to testamentary matters. In regard to those proposed improvements, so far as they had been explained by the clear and able statement of the Solicitor General, he (Mr. Walpole) might say that he entirely concurred with the hon. and learned Gentleman, who was already aware of the fact. Though he concurred in the opinions expressed by the hon. and learned Gentleman in respect to those improvements in the testamentary jurisdiction of the country, and as to the mode in which they were to be carried into effect, he believed that the hon. and learned Gentleman the Solicitor General, would find that when he was dealing with this great subject, it would be absolutely necessary for him to deal with the jurisdiction of those Courts in all other matters. He suggested that when the hon. and learned Gentleman brought in his Bill it ought to comprehend the whole of the jurisdiction now administered in the Ecclesiastical Courts. If, however, the hon. and learned Gentleman thought that such a measure would be too large to pass this Session, he (Mr. Walpole) would withdraw the observation which he had made. The principal matter, no doubt, for consideration, was the testamentary jurisdiction of the Ecclesiastical Courts. They ought, however, to recollect that if they took away that jurisdiction and transferred it to the Court of Chancery, they would leave the Judges and practitioners without any matter to remunerate them in order to induce them to continue in those Courts. He might say it was the intention of the late Government to introduce a measure on this subject, similar to that comprehended in the clear and able statement of the hon. and learned Solicitor General.
§ MR. HADFIELDsaid, he thought it only reasonable that the Bill should go to a second reading, as the expectations of the country on the subject were very great. 667 At the same time, he believed there was no one more competent to deal with the question than the hon. and learned Solicitor General, and he was perfectly willing to give him time to bring forward his proposed measure. He would agree to put off the Committee for a month, and if at the end of that time the Solicitor General had not prepared his scheme, then he should be entitled to go on with his Bill. With that understanding he would propose to read the Bill a second time now, and to go into Committee on that day four weeks.
§ MR. MULLINGSsaid, he was surprised that any expression should have been used that day to consent to the second reading of this Bill, because he was perfectly satisfied this Bill could not be made to work without determining a great deal which was matter of principle, and ought to be discussed by that House. In cases of intestacy some of the next of kin might live in one county and some in another, in which there might also be property; and under this Bill there would be a race run as to which should get administration first. He thought the proposal which had been made that this Bill should be altogether postponed, for the purpose of allowing the hon. and learned Solicitor General to bring in his large measure, would be much more fitting than to allow the second reading of this Bill. For these reasons he should move that this Bill be read a second time that day six months.
§ MR. SPOONERseconded the Amendment.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. WALPOLEsaid, he wished to explain an observation which he had made as to the intention of the late Government on this subject. What he wished to say as to the intentions of the late Government was, that they meant to bring in a measure after the Report of the Commissioners they had appointed to inquire into the whole question of the ecclesiastical bodies had been received. His own individual opinion on that branch of the subject which related to the testamentary jurisdiction was pretty much at one with that entertained by the hon. and learned Solicitor General; but what he wished to say was, that that individual opinion was not the conclusion of the late Government, 668 and that the late Government had not considered or come to any determination upon the matter.
The SOLICITOR GENERALsaid, he had understood his hon. and learned Friend precisely in the way he had now described.
§ MR. MALINSsaid, that every person who was cognisant of the inconvenience at present attendant upon the administration of property must concur in the object of the Bill before the House, and in the desirableness of removing those inconveniences. But the manner in which it was proposed to carry that object into effect, involved considerations of the highest importance; and he thought it could scarcely be accomplished by any private Member of the House, especially when they found that the Government themselves had this very subject under consideration, and that it had formed part of an inquiry by Commissioners appointed by Her Majesty. Although the hon. and learned Solicitor General had given them an elaborate description of a Bill which at some future period he intended bringing into that House, still he believed it would be better if a discussion were taken upon the Motion for leave to introduce that Bill, than upon the statement the hon. and learned Gentleman had now made as to what he should do hereafter. He was satisfied, however, that the evils sought to be corrected by the present Bill were so great, and the remedy required so urgent, that it would form one of the prominent subjects in the Solicitor General's measure; and he thought therefore it would be better to postpone the second reading of the Bill until that measure came before them.
§ MR. GEORGEsaid, the hon. and learned Solicitor General, as he understood him, intended that probate should extend not only to personal property but to real estate, and therefore the obtaining of probate for a matter of 100l. in England might affect large real estates in Ireland; and if that were so, he thought full and due notice ought to have been given of so important a measure. There was another point in reference to Ireland. The Solicitor General proposed a concurrent jurisdiction in England and Ireland in reference to probates, and then they would have the Lord Chancellor of England deciding on the title of Irish estates, and an Irish Lord Chancellor deciding on the title of estates in England. He should therefore vote for the Amendment that the Bill be read a second time that day six months.
§ MR. R. PHILLIMOREsaid, he would suggest that the hon. Member for Sheffield (Mr. Hadfield) should comply with what appeared to be the general feeling of the House, and consent to postpone the second reading until that day month.
§ MR. HADFIELDsaid, he would consent to postpone the second reading for a month.
§ Amendment and Motion, by leave, withdrawn;—Second Reading deferred till Wednesday, 4th May.